Why the Organ Transplantation Law Needs to Be Amended to Aid Women

In 1980 organ transplants gained immense popularity with the masses in India, but the breakthrough also resulted in a surge in organ trade. This is a perfect example of how laws made with good intentions can become problematic for certain sections of the society.

Stories of poor people being paid a pittance for their organs, or of people being abducted and their organs stolen had become quite common. The business was booming thanks to the collusion between doctors and hospitals. Eventually the situation got so bad that the government was forced to intervene. In 1994, India passed a law to regulate organ transplants and organ donations.

This law made it easier for close family members to donate organs. It was done to encourage organ donations among families; it also put a stop to the trade in organs to a certain extent.

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But this law had a negative effect too. After the law came into force, instances of family members donating organs for transplants grew, but statistics show that the majority of these donors are women. Researchers collected data from AIIMS, PGI Chandigarh, Narayanan hospital in Hyderabad and other premier institutions, they found:

About 85 percent of all familial organ donors were women, while only 10 percent of the recipients were women. In transplants between spouses, 90-95 percent of the donors were wives, while instances of husbands donating organs to the wife were found to be rare.

When Women Donate And Men Receive

Medical experts say that kidney diseases do not discriminate between genders. Both men and women have an equal chance of developing renal issues, and consequently instances of them requiring a kidney transplant are also the same. But the chances of a man finding a kidney donor in their family are much higher, and often the donor is a woman from their family. Women, meanwhile, do not enjoy that privilege and chances of them getting a donor are low. Men seldom come forward to donate a kidney to a female relative.

Ever since the organ transplant law came into effect, it has become another burden on women, who are already in an unfavourable position in society and are struggling to gain their rights. The organ transplant law has become a pain for women.

Larger Presence of Woman Donors Has More Reasons Than One

The larger presence of women in organ donors has a lot to do with the specific situations of Indian society. Economic factors also play a role. Women often step forward to donate an organ to save a male family member’s life because the primary breadwinners are usually men. This also shows that economic parity, in terms of gender, is still a distant dream. In Europe, where disparity between genders is relatively lower, gender difference among organ donors also isn’t there.

There have also been cases where women have donated kidneys or other organs due to social and family pressure. It is possible that instances of such cases are much higher but they never come out.

The readiness of women to donate organs to a male relative also comes from a mindset which teaches them from childhood that women are supposed to sacrifice all for husband, brother and son.

This is a part of women’s cultural training. It is why we see stories like “Woman donates kidney to husband on Karwa Chauth, giving him gift of life.” No one ever asks why a husband doesn’t give the “gift of life” to his wife. While doctors don’t name people, they do tell stories of marriages where blood groups and organ compatibility are tested before the wedding, and later, once the wife has done her bit by donating an organ to the husband, she is divorced.

Transplantation of Human Organs Act : Key Aspects

Let us take a look at the key aspects of the Transplantation of Human Organs Act that have led to such an increase in female organ donors.

According to the Transplantation of Human Organs Act 1994 and its 2011 amendments, and regulations based upon it, if a living person wishes to donate an organ there are two categories under which permission for it is given – if it is a near relative then permission for the transplant is given by the hospital’s ‘competent authority.’

‘Competent authority’ in this instance would be the hospital itself. If the donor isn’t a near relative then permission for the transplant will be given by the government-appointed Authorisation Committee.

The Many Ordeals of Obtaining Permission

Obtaining permission from the Authorisation Committee is a long and laborious process. The committee grants permission only after conducting a thorough investigation to ensure that there is no instance of money or coercion involved.

Since Competent Authority is a committee appointed by the hospital and the people making the decision on it are representatives of the institute doing the transplant, getting permission from them is much easier.

Especially in the case of private hospitals and organ transplant centres, it makes sense, in terms of business, for them to have more and more organ transplants. In such a situation they are unlikely to investigate if a woman is being emotionally blackmailed and pressurised into donating an organ.

The most problematic section in this law is Article 9(3). In a nutshell, it states that if any donor authorises the removal of any of his human organs before his death for transplantation into the body of a recipient who is not a near relative, such a human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee.

If this Act is amended to ensure approval from the Authorisation Committee in all cases, even where the donor is a near relative, then the welfare of women would be much better protected. If a woman is under pressure to donate an organ, then the Authorisation Committee is much more likely to discover this in its investigation. It is also quite possible that if a family knows the case is going to go to the Authorisation Committee they might refrain from trying to pressure a female relative to donate.

Although this will bring in challenges to the relatively simple process of organ transplant among family members, and will increase the amount of time taken for a procedure, if a patient is serious then the amount of time can become quite significant. These are factors that need to be provided for when making changes to the law, and ensure a time-bound process is in place.

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How Can the Pressures Faced by Women Organ Donors Be Tackled?

Finally, to stop the discrimination and pressures being faced by women in organ transplants these steps need to be taken.

The Transplantation of Human Organs Act be amended to provide that even an organ donation by a family member be referred to the government appointed Authorisation Committee for investigation and approval.

For instances of a near relative organ donor, a mandatory provision be made for the opinion of the donor, especially if a female, to be obtained by the doctor in person; And when she is asked no other relative should be present.

In cases of divorce following a quick marriage and organ donation, a law needs to be put in place ensuring proper alimony and maintenance allowance by the husband or his family. If the recipient of the organ dies, then responsibility for the donor’s maintenance be taken up by his heirs. In addition, the legal proceedings for this be made easier, to ensure that women are able to get the compensation quickly. Unlike in usual instances of divorce where getting their due amount can take forever.

There can be many other remedies as well. There needs to be a national debate on the issue. But the first step would be acceptance of the fact that the significantly larger presence of women among organ donors is an issue.

(Gita Yadav is a seasoned officer at the Indian Information Service. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)

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